As an employer it is important to know what measures you need to take if you have an employee who is breastfeeding.
Why do I need to accommodate a breastfeeding employee?
Any person who is feeding their child/ren their own breastmilk is breastfeeding. This includes directly feeding children and using a bottle or cup to feed breastmilk – which requires expressing or pumping.¹
Unlike formula bottles from which children are recommended to be weaned from around 12 months old,² many children continue to breastfeed beyond 12 months old, with natural term weaning being between 2 and 7 years old.³ Therefore, an employee may be breastfeeding for years upon their return to work and need flexibility and/or accommodations made for them. Accommodating the needs of a breastfeeding employee could mean the difference between the employee remaining on parental leave or returning to work.
Expressing milk whilst away from the child is essential for the health of the breastfeeding person to reduce the risk of discomfort such as engorgement or leaking and illnesses such as mastitis.4
What does the law require me to do?
There are laws that require that you make reasonable adjustments for your employee who is breastfeeding. Some of the laws and industrial instruments you should be aware of are:
1. Anti-discrimination laws
a. Equal Opportunity Act 2010 (Vic)
i. Section 6 provides that breastfeeding is one of the protected attributes;
ii. Section 8 provides that it is unlawful to directly discriminate against a person by treating, or proposing to treat, a person with a protected attribute unfavourably because of that attribute;
iii. Section 9 provides that it is unlawful to indirectly discriminate against a person by having a rule/requirement that applies to everyone that unfairly disadvantages a person who possesses particular attributes; and
iv. Sections 17 and 19 provide that employers must accommodate an employee’s responsibilities as a parent or carer.
b. Sex Discrimination Act 1984 (Cth)
Section 7AA provides that a person discriminates against a woman on the ground of that woman’s breastfeeding if they treat that woman less favourably than they would treat others who are not breastfeeding.
2. Occupational health and safety laws
a. Being able to express milk whilst away from their child is essential for the health and wellbeing of the breastfeeding employee. If an employer prevents a breastfeeding employee from expressing, this could impact the employee’s health.
3. The Fair Work Act 2009 (Cth)
a. Section 65 provides an entitlement to employees to seek flexible work arrangements. This could include the provision of lactation breaks.
Other parts of the Fair Work Act prevent an employer from taking adverse action against an employee in connection with the exercise of workplace rights.
4. Enterprise agreements
Some enterprise agreements provide an entitlement for employees to be given breaks for the purpose of breast feeding and/or pumping and to be provided with accommodations for breastfeeding or pumping including a private non-bathroom space and refrigeration facilities. In some cases, this may be limited to a particular period after the child’s birth. In all cases, the employer should refer to the current agreement to clarify their obligations.
5. Court and Tribunal decisions
A recent decision of the ACT Civil and Administrative Tribunal demonstrates that the employer who fails to accommodate a breastfeeding employee appropriately can face heavy criticism.5
The Tribunal emphasised that “[w]hile the [Employer] does not have to provide the gold standard … it is obliged to do what it reasonably can in the context of its business to ensure no disadvantage flows to an employee with the breastfeeding attribute from the condition it imposes”.
In that case, the KFC franchisee, Southern Restaurants Group, was found to be indirectly discriminating against a worker by:
a. failing to accommodate her Fair Work Act section 65 flexible working arrangement request for a suitable expressing area by telling her to express milk in a small camp toilet style tent within a storeroom with no privacy or door;
b. failing to accommodate her request for unpaid breaks if her first request for flexible arrangements could not be accommodated; and
c. a manager suggesting to the employee that she return to work as a casual team member rather than assistant restaurant manager to “balance her breastfeeding responsibilities”.
The Court found that Southern Restaurants Group failed to adjust to the “needs of a modern workplace where women can give birth, breastfeed their children, and return to the workforce in a welcoming and accommodating [fashion]” and reinforced that “catering to the needs of breastfeeding employees is not an outlandish demand”.
If you would like information specific to your circumstances, please get in touch with us on (03)57224681.
MORGAN COUZENS LEGAL
- https://www.nichd.nih.gov/health/topics/breastfeeding/conditioninfo; and https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5802247/
- https://raisingchildren.net.au/newborns/breastfeeding-bottle-feeding/bottle-feeding/infant-formula
- https://www.breastfeeding.asn.au/resources/wondering-how-long-breastfeed
- https://www.thewomens.org.au/images/uploads/fact-sheets/Expressing-breast-milk-05819.pdf
- Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2023] ACAT 57 (25 September 2023)
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/act/ACAT/2023/57.html?context=1;query=Complainant%20202258%20;mask_path=au/cases/act/ACAT
The information provided in this blog is produced for guidance purposes only and is not legal advice. The information contained in this blog is based on the current state of the law at the time of writing. The law may have changed since this blog was written.
Morgan Couzens Legal does not accept liability for any loss or damage arising from reliance on the content of this or any blog produced by Morgan Couzens Legal. Liability is limited by a scheme approved under Professional Standards Legislation.
Legal advice should be sought for your individual circumstances. For advice tailored to your individual circumstances, please contact us by telephone on (03) 5722 4681.
